Scalia’s Death Will Create A Constitutional Confrontation Between Obama And The Senate

By Sal Bommarito

The death of Supreme Court Justice Antonin Scalia is going to create another huge confrontation between President Obama and Congress. At stake is Scalia’s very conservative seat. If filled by a liberal judge, the nature of SCOTUS will change for the foreseeable future. This turn of events is also going to be a major issue in the presidential election.

Here are the issues that were very well reported by the New York Times.

The president has the constitutional responsibility to nominate new Supreme Court justices when vacancies occur, generally from death and retirement. The Senate is constitutionally responsible for approving nominees by a simple majority. However, in recent years, the opposition party has used the threat of a filibuster to quash some presidential nominees, so the minority party has some power in the process.

As expected, the president indicated that he will nominate someone to replace Scalia to meet his responsibility. Simultaneously, senate leaders have stated that they will defer any votes on nominees until after the November presidential election. A confrontation is in the making.

For the past 80 years, the Senate has deferred confirmation hearings in a national election year so that the newly elected president would have control. This is not required by the Constitution, however.

If a Democrat wins the presidency, he or she will select a liberal judge. This will change the current makeup of SCOTUS from 5 conservatives (generally) and 4 liberals to 5 liberal and 4 conservative judges. If a Republican wins the election, he will nominate a conservative, restoring the court’s makeup to 5 conservatives and 4 liberals.

Often times, voters do not appreciate the impact of a presidential election on the totality of American life. In this regard, SCOTUS is currently considering several important cases dealing with immigration, Obamacare, contraception, “one person, one vote” and affirmative action by colleges.

If the Senate refuses to accept nominations from the president, only eight justices will vote on outstanding cases, 4 conservative and 4 liberal. In situations that result in a tie, existing laws take precedent. For instance, in a case involving labor unions, the existing ruling by a federal court would remain in effect and workers who chose not to join a union would be forced to pay for the union’s collective bargaining costs. With Scalia or another conservative, this decision would likely go the other way.

A lot is at stake, so how this all plays out will have a huge effect on the decisions by SCOTUS. As expected the presidential candidates, including Hillary Clinton, are lining up with their parties. Interestingly, Clinton is prepared to lose an opportunity to select a judge in the interest of party loyalty.

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